Cent. Ohio Coal Co. v. Director

• Decision Date: 07 August 2014
• Docket Number: No. 13–3712.,13–3712.
• Citation: 762 F.3d 483
• Parties: CENTRAL OHIO COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Larry T. Sterling, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

762 F.3d 483

CENTRAL OHIO COAL COMPANY, Petitioner,

v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Larry T. Sterling, Respondents.

No. 13–3712.

United States Court of Appeals, Sixth Circuit.

Argued: June 19, 2014.

Decided and Filed: Aug. 7, 2014.

ARGUED:William S. Mattingly, Jackson Kelly PLLC, Morgantown, WV, for Petitioner. Sean G. Bajkowski, United States Department of Labor, Washington, D.C., for Federal Respondent. Heath M. Long, Pawlowski, Bilonick & Long, Edensburg, PA, for Respondent Sterling. ON BRIEF:William S. Mattingly, Jackson Kelly PLLC, Morgantown, WV, for Petitioner. Sean G. Bajkowski, Helen H. Cox, United States Department of Labor, Washington, D.C., for Federal Respondent. Heath M. Long, Pawlowski, Bilonick & Long, Edensburg, Pennsylvania, for Respondent Sterling.

Before: SILER, CLAY, and GIBBONS, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Larry Sterling, a former coal miner for Central Ohio Coal Company, received a favorable decision from an administrative law judge (ALJ) declaring him eligible for benefits under the Black Lung Benefits Act. The Department of Labor's Benefits Review Board affirmed the decision on appeal. Central Ohio now petitions this court to review the award. It contends that the ALJ wrongly applied the statutory presumption of pneumoconiosis and improperly discredited certain medical opinions disputing Sterling's pneumoconiosis diagnosis, and further argues that the ALJ failed to explain his resolution of conflicting evidence about the extent of Sterling's past cigarette smoking. The petition is denied.

I.

The Black Lung Benefits Act, 30 U.S.C. § 901 et seq., provides for the payment of black-lung benefits through the United States Department of Labor (DOL) to coal miners who are totally disabled due to pneumoconiosis, a “chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.” 30 U.S.C. § 902(b). Pneumoconiosis comes in two forms: clinical pneumoconiosis and legal pneumoconiosis. “Clinical pneumoconiosis” refers to certain lung diseases that the medical community recognizes to be caused by exposure to coal dust—in the words of the applicable regulation, diseases “characterized by permanent deposition of substantial amounts of particulate matter in the lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust exposure in coal mine employment.” 20 C.F.R. § 718.201(a)(1). “Legal pneumoconiosis” is a broader and less definite term that refers to any chronic lung disease that was caused in this instance by exposure to coal dust. 20 C.F.R. § 718.201(a)(2).

To establish entitlement to benefits, the claimant must prove by a preponderance of the evidence that (1) he has pneumoconiosis, (2) his pneumoconiosis arose in whole or in part out of his coal mine employment, (3) he is totally disabled, and (4) the total disability is due to pneumoconiosis. Greene v. King James Coal Mining, Inc., 575 F.3d 628, 634 (6th Cir.2009) (citing 20 C.F.R. §§ 718.202–04). The pneumoconiosis is deemed to “aris[e] out of coal mine employment” if it is “significantly related to” or was “substantially aggravated by” dust exposure during the claimant's coal mine employment. 20 C.F.R. § 718.201(b). A benefits claimant can establish the existence of pneumoconiosis with medical evidence such as a chest X-ray, autopsy or biopsy evidence, or reasoned medical opinions, or by invoking an applicable presumption. 20 C.F.R. § 718.202(a).

One such statutory presumption provides that a claimant may establish a rebuttable presumption of pneumoconiosis if the claimant has a totally disabling respiratory or pulmonary impairment and spent at least fifteen years working in an underground coal mine or “in coal mines other than underground mines in conditions substantially similar to those in underground mines.” 20 C.F.R. § 718.305(b)(1) (implementing 30 U.S.C. § 921(c)(4)). In September 2013 the DOL promulgated regulations further explicating this presumption: “The conditions in a mine other than an underground mine will be considered ‘substantially similar’ to those in an underground mine if the claimant demonstrates that the miner was regularly exposed to coalmine dust while working there.” 20 C.F.R. § 718.305(b)(2). Once the presumption is invoked, the burden of persuasion shifts to the employer to establish that (1) the miner has neither clinical nor legal pneumoconiosis, or (2) the miner's respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine. 30 U.S.C. § 921(c)(4); Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 479 (6th Cir.2011).

II.

Sterling was born in 1945 and spent at least twenty-three years in the coal industry. Sterling never worked below ground, but he worked the gamut of aboveground jobs: strip mining and augering, loading coal trucks, driving those trucks, and doing general maintenance. He spent most of his time operating a bulldozer, removing the dirt and rock that covered a coal seam and then replacing that material, called overburden, when mining was complete.

Sterling stopped mining in 1999, when the Central Ohio Coal Company laid him off. Sometime thereafter he was asked to return to work at the mine, but he was unable to pass the requisite physical examination due to the poor condition of his lungs. Evidently the coal company worried that he “could pass out and hurt [him]self or someone else.” Sterling has been using an oxygen tank since 1995, when Dr. Thomas Forrestal, Jr., his family doctor, instructed him to start using it. At some point Dr. Forrestal told Sterling to see Dr. Philip Diaz, who ran the Lung Center at Ohio State University. Dr. Diaz diagnosed Sterling with chronic obstructive pulmonary disease (COPD) caused by a combination of coal dust and cigarette smoke.

In October 2006 Sterling filed a claim for benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1977 and the Patient Protection and Affordable Care Act of 2010. His claim was denied by the District Director of the Division of Coal Mine Workers' Compensation within the U.S. Department of Labor's Office of Workers' Compensation Programs. After Sterling requested a formal hearing, an ALJ held a hearing in June 2011 to assess the merits of Sterling's claim.

The ALJ first attempted to determine the full extent of Sterling's history as a cigarette smoker. Sterling testified that he was a heavy smoker for almost forty years—from Thanksgiving of 1966 until he quit on Valentine's Day of 2005. For the first ten or fifteen years, Sterling testified, he smoked about one pack a day. Then he began to smoke closer to two packs a day; on especially busy workdays, he would smoke upwards of three packs a day. The ALJ also considered prior statements that Sterling had made to various doctors about his smoking history. Noting that the evidence of Sterling's smoking history was “somewhat contradictory,” the ALJ concluded that Sterling had averaged about one-and-a-half packs of cigarettes per day for thirty-eight years—a total of fifty-seven pack-years of cigarettes.

The ALJ then determined that Sterling was entitled to a statutory presumption of pneumoconiosis because he had spent more than fifteen years working in aboveground coal mines whose conditions were substantially similar to the conditions in underground mines. The ALJ credited Sterling's testimony that the conditions throughout his employment at the coal mine were “very dusty.” In the ALJ's view, Sterling's testimony “establishes that while [Sterling] was working in surface mine employment he was exposed to a heavy amount of dust to include coal dust”—especially on hot and dry days, when trucks would kick up a great deal of dust as they drove along the haul roads. Although Sterling usually operated bulldozers equipped with covered cabs, the seals in those cabs often leaked, and Sterling spent much of the day working outside the cab in the open, dusty air. As a result, at the end of each day Sterling's clothes would be soiled with dirt, grease, and oil. Sterling's “description of his clothes when he returned home from work is typical testimony by underground coal miners, who similarly complain about being exposed to dust while in the mines and having significant dust on their clothes when they return home from work.” That entitled Sterling to the statutory presumption.

The ALJ next concluded that Central Ohio failed to rebut the presumption through proof that Sterling has neither clinical nor legal pneumoconiosis. He deemed the X-ray evidence inconclusive on the whole because various radiologists had reached contradictory views about the presence of pneumoconiosis after reviewing three separate X-rays. The ALJ also considered medical opinions prepared by five different doctors. Two doctors diagnosed Sterling with clinical pneumoconiosis, while the three others opined that Sterling's lung disease was not due to clinical pneumoconiosis. Yet the ALJ credited none of those five opinions due to various methodological flaws, and the ALJ therefore determined that the presumption of clinical pneumoconiosis withstood scrutiny.

On the issue of legal pneumoconiosis, three doctors concluded that Sterling did not have legal pneumoconiosis, but the ALJ discredited those opinions due to either internal inconsistencies or incompatibility with applicable DOL regulations. The other two opinions—those provided by Drs. Diaz and Forrestal—both diagnosed Sterling with legal pneumoconiosis, and the ALJ afforded those opinions full probative weight. The ALJ thus held that the presumption of legal pneumoconiosis survived examination and that Sterling had established legal pneumoconiosis by a preponderance of the evidence, even without application of the statutory presumption.

Central Ohio appealed the ALJ's decision to the DOL's Benefits...